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When Heads of State Issue Criminal Pardons

The past year has seen a number of interesting cases of pardons being considered and issued by top-ranking American and Canadian politicians. The time-honoured legal tradition of top officials granting a reprieve to some offenders is not without its critics; indeed, some of the recent cases can serve to illustrate the controversy behind criminal pardons. Were the pardons that were issued deserved? Is there a point in granting a pardon to a convicted party who is long dead? To name some key recent cases:

• In April 2010, Mayann Francis, the Lieutenant Governor of Nova Scotia, posthumously pardoned Viola Desmond, a black woman who was wrongfully convicted of tax evasion in 1946 after refusing to sit in the “coloured” section of a New Glasgow movie theatre.

• On the other hand, on 31 December, Bill Richardson, the Governor of New Mexico, refused to grant a posthumous pardon to infamous Western outlaw Billy the Kid; supporters of this unusual move claimed that Governor Lew Wallace had not fulfilled a promise to pardon one of Billy’s murders on condition that Billy testify in a court case. In justification of his decision, Richardson stated that explicit evidence of Wallace’s intentions was lacking.

• In November, the Pardon Board of Wisconsin decided not to consider a pardon for Laurie “Bambi” Bembenek, who was convicted of murder in 1981 but steadfastly defended her innocence. The Board rejected her pardon application on procedural grounds, citing that Bembenek had provided incomplete documentation. She died soon afterward.

• At the end of 2010, Doors lead singer Jim Morrison was posthumously pardoned by the State of Florida for allegedly exposing himself during a concert. Supporters of the singer criticized the move, claiming that Morrison was innocent, and thus there was nothing to pardon.

• In Ohio, by the time he left office early in the New Year, outgoing Governor Ted Strickland had pardoned or commuted the sentences of no less than 290 people. On the other hand, US President Barack Obama, criticized for being slow to issue presidential pardons, granted his first nine pardons on 3 December, almost two years into his term of office.

The use of the power to grant criminal pardons by public officials has existed since the days of absolute monarchy, when the king could remit offences. Its continuing existence is often a source of controversy, as the cases above might show. To the population at large, it would appear to be an arbitrary power: if somebody has been convicted of a crime, why should a politician be able to forgive them, and using what criteria? Before we discuss this particular issue, it might be useful to see just how arbitrary the granting of criminal pardons is and for what the implications of receiving one actually are. It should first of all be emphasized that what a pardon is and who can grant one varies widely between jurisdictions. For example:

In Canada, there are two kinds of pardons, with the common kind not being arbitrary at all. A normal criminal pardon in Canada is sought, not from any politician, but from the Parole Board of Canada. The Board will pardon any offence that meets a set of criteria prescribed by law. The effect of this is not the forgiveness or remission of an offence, but is limited to the individual’s criminal record being given restricted access and not being disclosed during criminal record checks. It cannot shorten a sentence or erase all trace of a criminal record. On the other hand, the Crown, through the Governor General and provincial Lieutenant Governors, can exercise “clemency”, a broad power to shorten or remit sentences, deem that a conviction never took place or show related forms of mercy. Here again, there are restrictions: clemency is normally exercised on the recommendation of the Minister for Public Safety or other federal minister, is resorted to only when normal avenues of justice have been exhausted, and in practice, is only granted in exceptional circumstances. The American example is more complex. To begin with, while all crimes in Canada are federal, in the US, every state has its own criminal law and there are federal crimes on top of that. According to Article II, Section 2 of the Constitution, criminal pardons for federal offences are the sole prerogative of the President, who has absolute discretion over the matter. He may pardon anybody at any time on a whim, provided the offence in question is federal. On the state level, the power to pardon varies from state to state; while the governor may have the power to do so, his authority may be limited by the existence of a pardon/parole board, which may make recommendations to him, or make the decision itself.

Another distinction we must make is between purposes of pardons. The word “pardon” implies forgiveness and in many cases, that is the essence of a criminal pardon being granted, as it results in an offender being released from prison before the expiring of his sentence. However, the term is also used in some contexts to designate the cancelling of a wrongful conviction. For instance, in the above case of Viola Desmond, the category of clemency exercised was what is called a “free pardon” – a specific form of pardon which recognizes that the conviction was in error and thus null and void.

The arbitrary exercise of clemency must have been a welcome power in the Middle Ages, when the king had near-absolute authority and this prerogative would have been seen as a check on the enormous power he wielded. Today, however, democracy and the rule of law are firmly rooted in society; therefore, in jurisdictions where a Governor, President or other official is authorized to remit a legitimate sentence imposed by a court on a pure whim, the existence of this power would appear to be an anachronism. The power to pardon itself is not the problem: it can be seen as a final resort, particularly in cases where a miscarriage of justice has occurred (a person was wrongfully convicted or was given a disproportionately severe sentence) or when the serving of the sentence in full would result in undue hardship. But it seems clear that the conditions under which a criminal pardon can be granted should be subject to rules defined by law; it is not fair toward society and victims for an official to be able to grant this merely due to personal preference or for political reasons. A victim may choose to forgive an offender; a politician should not be able to make that choice in the victim’s place.

Ned Lecic lives in Toronto. He is interested in different aspects of the law, including criminal law, civil law, and the pardons process.

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Question by puppiesnmarshmellows: why would someone from the parole and pardon board be looking at a house?
The house next to me is on a foreclosure list and scheduled to go to auction really soon. Someone from the parole and pardon board came over and asked how long its been vacant, flooding in the back and drainage..and then went over to look at it. Does that mean they are thinking about buying it? If so what does that mean for me? I don’t want to live next door to a known criminal..and that means i would have no chance in selling my house..

Best answer:

Answer by armmegurl
First, calm down…I doubt you realize how many people are actually “criminals” and how public their records are: people you trust the most probably have backgrounds of some sort :The guy adjusting your breaks, the nurse taking your blood pressure. Besides, parol and probation does not HOUSE people; they merely babysit wherever these people find a house. They are not househunters for ex convicts nor apartment hunter (for the most part). Prehaps they were looking at it for themselevs……hmmm…Ex convicts are not given a free ride when they get out of prison, they sometimes have to work twice as hard at the simple things you and I enjoy. Calm down and look around you…some of the most respected people in your community are “criminals” and still elad everyday lives. Besides, anyone who would buy your home won’t be doing background checks on your neighbors unless they are unruly or in some way a bother to the rest of the neighborhood. Remember: the BTK killer was a considered a “pillar in the community and a family man” yet: he was a criminal.

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VP Binay: 3 OFWs spared from death penalty in Sabah
In January this year, Philippine Ambassador to Malaysia J. Eduardo Malaya called on Sabah Governor and Pardons Board Chairman Tun Datuk Seri Panglima, and requested for his intervention to commute the death sentences of six Filipinos, including the …
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Crime, Sexual Violence, and Clemency: Florida’s Pardon Board and Penal System in the Progressive Era (New Perspectives on the History of the South)

Crime, Sexual Violence, and Clemency: Florida's Pardon Board and Penal System in the Progressive Era (New Perspectives on the History of the South)

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In Pennsylvania, the Board of Pardons reviews criminal cases, to determine whether clemency should be recommended to the Governor for his approval or denial. In this episode of Conversations, Dennis Miller discusses the Pa Board of Pardons with John Heaton. Mr. Heaton explains the power and responsibilities of the board. Topics such as, the history of the group, board members, applying for a pardon and the process to receive a pardon, are also covered in this episode of Conversations.

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